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Wednesday, July 06, 2005

Race in jury selection

The Miami Herald published today an op-ed** that I wrote concerning peremptory challenges. I argue that the only way to eliminate racial bias in jury selection is to do away with peremptory challenges. This will draw the ire of criminal defense lawyers, prosecutors, and jury consultants. But I challenge them to say with a straight face that race doesn't play a part in their selection of jurors. It shouldn't. Here's the article:

Any trial lawyer who says that he does not consider race as a factor when selecting a jury is not telling the truth. And that includes prosecutors, who -- it has been repeatedly shown -- attempt to exclude minorities from juries.

The problem with selecting juries is that the system is geared for relying on stereotypes and prejudice. Each side in both civil and criminal cases can strike a number of jurors from the panel for no reason. These strikes are called peremptory challenges. The idea behind allowing these sorts of strikes is that if the trial concerns, for example, a lawsuit over a dog bite, the lawyers should be permitted to strike a juror who has had a bad experience with a dog, even if that juror claims that she could be fair.

Peremptory challenges, however, have been used to strike jurors for a whole host of other impermissible reasons, like race, religion, gender and ethnicity. The Supreme Court has been struggling with how to keep race out of the jury selection process for many years.

Back in 1986, the Supreme Court in Batson vs. Kentucky prohibited lawyers from using race in their peremptory challenges. The court's decision in that case was nice as a matter of theory, but has failed miserably in practice. It is nearly impossible to show that a potential juror was stricken for a racial reason. Seasoned trial lawyers explain that they struck a juror for ''race-neutral'' reasons, such as the person gave a hostile look or seemed to have too much or too little knowledge of the subject matter, and so on.

Justice Thurgood Marshall -- the first African-American justice -- wrote a separate opinion in Batson, arguing that peremptory challenges always would be abused and that a just and fair system would abolish them altogether. The only way to ''end the racial discrimination that peremptories inject into the jury-selection process,'' he concluded, ''was to eliminate peremptory challenges entirely.'' No one paid Marshall much attention.

The issue of peremptory challenges again came to the Supreme Court's attention last month in Miller-El vs. Dretke, a death penalty case in which 19 of the 20 black potential jurors were stricken. Finding the prosecution's explanations for its strikes ''incredible,'' the court reversed the conviction, reaffirming the unworkable formula in Batson for determining when peremptory challenges were being used appropriately.

Justice Stephen Breyer, agreeing with the reversal, wrote separately to explain that Marshall had it right almost 20 years ago when he suggested that we do away with these challenges altogether. Breyer points out that lawyers are becoming more savvy in explaining away their juror strikes, going so far as to hire expensive jury consultants to help them base their strikes on the theory de jour regarding a particular group of people. Some jury consultants (as the ones used in the cases of Michael Jackson and Martha Stewart), it has been reported, command as high an hourly rate as the lawyers themselves.

Breyer and Marshall are right -- the only way to cut race out of the jury-selection equation is to do away with the peremptory challenge. To do this, judges need to allow lawyers to conduct a real inquiry into jurors' backgrounds so that jurors who would have obvious biases or problems judging a particular case can be excused for cause by the judge.

The Miller-El case demonstrates the high improbability of ever showing racial discrimination under the Batson formula. Despite the strength of his claim, Miller-El's challenge resulted in 17 years of largely unsuccessful and protracted litigation involving 23 judges, eight judicial proceedings and eight judicial opinions, the great majority of which found no Batson violation.

Amazingly, race still plays a major part in selecting juries. More amazing still is that we continue to ignore an easy solution to this problem. The time has come to do away with peremptory challenges and in so doing, to do away with racial prejudice in jury selection.

David Oscar Markus is a criminal defense lawyer in Miami.

**the picture in the Herald is of another David Markus in Miami! The Herald asked me for a picture, which I emailed. For some reason, this wasn't enough and they printed someone else's picture.... my parents were thrilled.

26 comments:

J. Fernandez
said...

As a prosecutor for 4 years and criminal defense lawyer for over 12 years I know that the biggest lie trial lawyers tell jury panels during voir dire is that they are looking for impartial juries. Each party in a trial wants a jury partial to its side. You just might have the right solution.

David - I think you should be happy they posted the wrong photo since I would not want to think that the intelligent David Markus I know would have such a bad idea in his head. The peremptory challenge remains one of the few acts of lawyering over which there is autonomy (absent unconstitutional bias) and restricting that autonomy simply disempowers good lawyering in one of the most important phases of a jury trial. Your own great trial record proves this point. Even if peremptories were eliminated, unconstitutional discrimination in jury selection would simply move to the challenge-for-cause part of the process in which inventive lawyers will create and find cause much as they circumvent Batson now. Jury "selection" is an important part of the American jury trial. Unconstitutional discrimination in that process should be addressed as are all breaches of legal ethics, on a case-by-case basis, not by a wholesale abandonment of the practice that often ensures a fair trial.

While I agree that race should not be an issue, I also believe that there is no way to stop it from being an issue. In addition, because race is the easiest scapegoat when it comes to government problems it is also the most used to find fault in them. However, what about those attorneys who use the peremptory challenges to get rid of people for reasons other than race? Should we get rid of these challenges because they are used by some? It seems like we are punishing the masses for the faults of some. As Justice Scalia pointed out in his dissent in J.E.B. v. Alabama (511 US 127), everyone is subject to it therefore it is equal. More importantly, who should the government be more concerned about protecting, the juror who gets dismissed because of his/her race because they were denied their chance to be part of the judicial process or the defendant who faces 20 years behind bars if he is found guilty by a jury which he has no say in? If you think there are a lot of complaints now about not getting a jury of your peers, what do you think will happen when you take the only equalizing power away from those defendants? Also, while Justice Breyer did agree with Justice Marshall’s concurring opinion in Batson, he also pointed out statistics which reinforce what Scalia said in J.E.B. about it being equal. Besides, even if you were to get rid of the peremptory challenges, it would only cause people to search deeper for reasons to dismiss potential jurors for cause. Consequently, people would again say that it was based on race and again we would have to try to think of ways to correct it. The only difference would be that the person who would be recognized as racist would shift from the attorney who asks for the dismissal to the judge who approves it. No matter how much you change the system there will always be people who don’t think it is fair. In conclusion, if you were facing time in prison and your life was in the hands of 12 strangers, wouldn’t you at least want some say in whom those 12 strangers should be?

Although I agree that discrimination is inevitably present in our jury selection process, I would not like to see the peremptory challenges completely eliminated. On the same note however, I cannot think of a better solution to eradicate the discrimination and still allow jurors to be stricken for reasons other than race. When parties are chosing who they want on the jury, how will they ever be "fair and impartial?" Even worse, how is the process supposed to be fair when one party is allowed more peremtory challenges than the other? I find the challenges facially proper but practically ineffective.

David - I think peremptories have the effect of creating a biased jury, not an impartial one. Lawyers use these peremptories to create juries that are not truly 'representative of the community'. Instead, the current system of peremptories affords wealthier litigants the opportunity to rely on jury consultants to help shape the jury to suit their client’s needs, even if this means establishing a jury that is favorably biased towards one party0. Additionally, the cost associated with peremptory challenges cannot be reasonably justified. The cost of litigation is unreasonably increased through the use of jury consultants, extensive questioning of jurors to determine whether a peremptory challenge is going to be used and possible habeas corpus petitions. Although Batson and its progeny have attempted to establish a legal test by which to examine possible discriminatory exclusion of jurors belonging to a suspect class, the reality is that the standards articulated in Batson have resulted in few successful challenges and have left the door open to non-suspect class discrimination. It might be more prudent to replace the current system with all its associated costs and shift the responsibility of jury selection to an impartial judge who will decide whether there is in fact an acceptable reason to deny a citizen the right to serve as a juror. A ‘challenge for cause’ system will still afford the attorneys to engage in extensive questioning but will not provide them with the power to automatically exclude a member of the jury without cause. Instead, the attorney will have to articulate to a judge the basis for excluding a potential juror. Rather than starting from the premise that the juror is biased based on the potential juror’s group identity and demographic characteristics, the court will have to engage in extensive examination to determine whether the juror itself, and not the group to which he or she is associated, has pre-conceived notions that would prevent them from being impartial. The current system helps to promote, rather than eliminate, stereotypical judgments about groups in our society. If the real interest of litigants is to establish an impartial and unbiased jury, then do away with peremptories and move towards a system based entirely on challenge for cause with right of appellate review.

Ok, what if we do away with peremptory challenges...won't there just be more objections for "cause"? I think that either way, with or without peremptory challenges, there will be racial bias towards jury selection because...ATTORNEYS WANT TO WIN THIER CASES...so, why do away with peremptory challenges? Will it really make that much of a difference?

Lawyers will use peremptory challenges to remove jurors they deem somehow unfavorable to their case. In the throws of zealous advocacy, they will rationalize and justify the removal of any juror they suspect may be ever so slightly predisposed against them. The crude calculation of this predisposition may rest only on a racial stereotype or other similarly irrational basis. The incentives to stack the jury in favor of one's client, using the currently permissible method-the peremptory challenge-are too great it seems for even the most high-minded lawyers to resist. What is involved in the exercise of a peremptory challenge? Take a racial or other irrational bias and exercise it to remove a juror without having to provide sound argument as to why that juror should be removed. Is this the application of good lawyering skill? With the peremptory challenge, whether the lawyer has challenged the juror for an "acceptable reason" or an "unacceptable one" we cannot know. Even if his challenge is tested by Batson, Batson's requirements are easily defeated with a only a modicum of skill. Court rules and statutes should promote clarity in the administration of justice. Peremptory challenges promote the gaming of the system and obscure the process of jury selection from the public's understanding. Whether it has other merit which outweighs these negatives, I'm not so sure.

Peremptory challenges should be eliminated. The Court in Holland v. Illinois interpreted peremptory challenges as a means to procuring impartial juries. However, in practice, peremptory challenges (1) serve to reduce the degree to which the composition of juries represent their communities demographically and (2) encourage the use of false pretexts to eliminate jurors because of their race. Miller-El strongly illustrates the detrimental impact of peremptory challenges through the 19 out of 20 potential black jurors who were prevented from serving as jurors. The striking of jurors because of a suspicion of bias in peremptory challenges is a significantly weaker mechanism for producing impartial juries than a thorough exploration of jurors' backgrounds to identify clear bias through challenges for cause. In the post-Batson era, the elimination of jurors because of their race through false pretexts which are presented as "race neutral" reasons leads to a warranted skepticism about the judicial process rather than helping to maximize the impartiality of juries.

While the elimination of peremptory challenges may not entirely solve the problem of racial discrimination in the jury selection process, it is a step in the right direction. In response to a Batson challenge, a prosecutor must state the reasons for striking a juror. Unfortunately, this process leads to protracted litigation, which is more costly in terms of both time and money. More importantly, the reality is that peremptory challenges deny citizens who are members of a minority group the right to participate fully in the judicial process. Proponents of the use of peremptory challenges may be correct when stating that attorneys have come up with barely plausible explanations for striking a juror for cause. However, these attorneys will be forced to state their reasons from the onset and not before conducting a more intensive examination of a juror’s background and beliefs. Such inquiry may lead a conscientious attorney to accept a juror he may have needlessly dismissed, and may put others on notice that their biases will be more easily discernable. If we are to adhere to the ideals we profess to hold dear, we cannot continue to employ practices such as shuffling of jury panel members or peremptory challenges, which no matter the theoretical rationale, have in practice been used to discriminate against minorities. As Justice Breyer pointed out in his Miller-El concurrence, “the Constitution protects not just defendants, but the jurors themselves.”

While the elimination of peremptory challenges may not entirely solve the problem of racial discrimination in the jury selection process, it is a step in the right direction. In response to a Batson challenge, a prosecutor must state the reasons for striking a juror. Unfortunately, this process leads to protracted litigation, which is more costly in terms of both time and money. More importantly, the reality is that peremptory challenges deny citizens who are members of a minority group the right to participate fully in the judicial process. Proponents of the use of peremptory challenges may be correct when stating that attorneys have come up with barely plausible explanations for striking a juror for cause. However, these attorneys will be forced to state their reasons from the onset and not before conducting a more intensive examination of a juror’s background and beliefs. Such inquiry may lead a conscientious attorney to accept a juror he may have needlessly dismissed, and may put others on notice that their biases will be more easily discernable. If we are to adhere to the ideals we profess to hold dear, we cannot continue to employ practices such as shuffling of jury panel members or peremptory challenges, which no matter the theoretical rationale, have in practice been used to discriminate against minorities. As Justice Breyer pointed out in his Miller-El concurrence, “the Constitution protects not just defendants, but the jurors themselves.”

Mr. Lee quotes Justice Scalia’s dissent in J.E.B. v. Alabama. Scalia wrote, “everyone is subject to it therefore it is equal.” Peremptory challenges might only be fair because both sides may utilize them. However, it seems to me that eliminating peremptory challenges might create an even more unequal playing field. Our adversarial system requires lawyers to be savvy. Many times the winner in the adversarial system is determined by the savviest lawyer or the more personable lawyer. If lawyers are refused peremptory challenges then the savviest lawyers will have no problem dismissing jurors for cause, fabricated or not. Lawyers must aggressively present their client’s case, wouldn’t that include eliminating jurors that may be more favorable to the opposing side? I believe race shouldn’t be a factor, but isn’t the issue of race almost avoidable? A defendant should be tried by her peers. Should a trial by a jury of your peers be defined by race, economic status, or sex? I concede that it is impossible to know how a juror will decide any case, and that prosecutors and defense attorneys incorrectly use peremptory challenges. I am interested in learning the break down of jurors that report for duty. I wonder if prosecutors use this more to eliminate minorities than defense attorneys use it to eliminate majorities. Do more majority voters report for duty? Is it more difficult for a minority defendant to eliminate majority jurors since they will be replaced by other majority jurors? Lawyers, unfortunately, don’t have a reputation for being very ethical. Those that are ethical may decide not to use peremptory challenges to eliminate jurors based on race, but those that are unethical will find a way to eliminate jurors they just don’t like whether or not peremptory challenges are allowed. It seems your reasoning behind eliminating peremptory challenges is honorable. I just don’t know if the means will get the end result you want. Batson didn’t do it, and I am not sure this will either.

FROM ben guerrero:We all agree that racial bias has been engrained in our society historically and is presently alive and well. Our justice system is reflective of that bias. This leaves us with the difficult question of how to control discriminatory practices by attorneys during jury selection, particularly when using peremptory challenges. The Supreme Court in Batson v Kentucky laid out a three-prong test to determine whether there is racial discrimination in the use of peremptory challenges. This is exceptionally difficult to prove as we see in cases such as Miller-El v Dretke. Justice Thurgood Marshall wrote that the only way to eliminate the racially bias nature of the peremptory challenge was to eliminate it all together. Many commentators agree, but there are consequences that would come with this resolution. If we did away with the peremptory challenge a system would need to be developed that gave attorneys on both sides a greater number of challenges for cause. Challenges for cause are more time consuming and require greater analysis. A greater number of challenges for cause would put financial burdens on the courts as well as strain already bursting dockets, especially in state courts. Additionally, savvy attorneys, if so inclined, would find ways to discriminate in a jury selection system that only allowed for challenges for cause. If the peremptory challenges were done away with the court would eventually have to address racial discrimination in challenges for cause, leading to a new series of “Batson” controls. Doing away with peremptory challenges will unnecessarily handcuff defense attorneys. The peremptory challenge still remains a valuable tool in the defense attorney’s arsenal. Batson may not be the best solution but eliminating the peremptory challenge would not be the remedy for an intolerable social infirmity

I disagree that the preferred solution to the problem of the misuse of peremptory strikes is to abolish their use. Had Batson been correctly decided, this would not even be an issue.

Batson was decided largely on the authority of Swain v. Alabama, a racially divisive civil rights-era case. The Court in Swain held that the Equal Protection clause forbids a state from preventing jurors from serving based solely upon their race. Thus, the Court found, an individual has a Fourteenth Amendment right to serve on a jury regardless of his or her race. Batson simply attempts to apply this same logic in reverse - if an individual has a right to serve regardless of race, then a Defendant’s Equal Protection rights are violated when prosecutor seeks to violate the juror’s Equal Protection rights. Though this logic is persuasive on its face, it cannot possibly be correct. For example, are my First Amendment rights violated when the City of Miami denies you a permit to hold a demonstration? Certainly not, even if the demonstration were solely for my benefit (for example, if you were to demonstrate for my release from unlawful detention.) Though no doubt I would lack standing to sue, that is not the issue. An Equal Protection right, like a First Amendment right, cannot simply be ‘flipped over’ and used on both sides like a 45-record.

The Court in Batson could have alleviated this difficulty by simply acknowledging that the defendant has a Sixth Amendment right to a trial “by an impartial jury”, and that right is violated when the prosecutor is successful in seating a biased jury. What an elegant concept: when a constitutional question involving a jury arises, look to the part of the document that uses the word “jury.” The Court should have held that it is the duty of the trial court to ensure that the sworn jury is reasonably representative of “the State and district wherein the crime shall have been committed”, as is required by the Sixth Amendment. Had Batson been decided this way, then Dretke would have been a much easier case.

More importantly, had Batson been decided on Sixth Amendment grounds, then there would be no need to scrutinize peremptory challenges. There would also be no need for procedural burden-shifting nonsense, pretextual excuses for strikes, or subjective determinations of ‘purposefulness’ that Batson has spawned. The judge need only make a single determination, the one which the Constitution requires: Is the jury before me representative of this community?

I would have to agree with MEC, if not preemptory challenges then what? Preemptory challenges are a tool provided to attorneys in order to seat a jury that will provide them the best chance of winning their case. A good lawyer will find a way to have their challenged juror dismissed for cause. In the current state of affairs if a pattern is noticed in preemptory challenges a lawyer has to provide a plausible reason for the dismissal. Will this change without the preemptory challenge or will prospective jurors go directly to a more time consuming process of trying to provide a reason for each dismissal? The preemptory challenge provides an opportunity to quickly dismiss questionable jurors without having to go through a long procedure of explaining it.

Adrian Nunez said ...Biases and stereotypes are a part of human nature and inevitably become a part of the jury selection process. Whoever the jurist may be, these will exist in some form and manifests itself in our subconscious or conscious reasons for selecting one juror over another. This is part of jury selection and part of peremptory challenges. The question remains if the test setout by the Batson court is sufficient protection against 14th Amendment equal protection violations in the context of peremptory challenges? As Miller-El’s experience demonstrates, a Batson challenge may be successful if the level of racial bias is so evident in the jury selection process to satisfy the showing of purely bias selection criteria. In addition, we see that the challenge may be lengthy and burdensome. Nevertheless, it appears that the reason for this may be the protection many judges afford this portion of the jury selection process and the importance it has held over time in initial trial strategy. Zealously advocating for your client begins when the attorney-client relationship is established and must be part of the client’s strategy to achieve the best possible outcome. The venire will represent a fair cross-section of the community and theoretically satisfy the right to trial by a jury of one’s peers. However, the word “peer” according to Webster’s dictionary means one of equal standing especially of similar societal groups based on age and status. So literally, part of jury selection and trial strategy should include obtaining a jury that best relates and associates with your client. Can this include certain biases and stereotypes? I think the answer is yes. The difficulty is eliminating blatant racial, gender, or ethnic biases. The Batson court while recognizing the wrong in racial discrimination also sought to protect the importance of peremptory challenges. This is reconfirmed in the Miller-El case. Despite the difficulty to successfully prove a Batson violation, the way I see it, the Court feels that the evidence of discrimination should stand out in the record. Yet the subjective nature of analyzing the “neutral” reasons given the peremptory strikes may lead many judges to differ in the outcome of a Batson challenge. I am not certain of what the proper solution should be. I don’t agree with Justices Marshall and Breyer who would eliminate the process altogether. Should we eliminate all laws that may lead to de facto discrimination despite being neutral on its face? Societal forces may drive some of these situations without any unlawful purpose. The adversary process allows for both sides to apply pressure to potential jurors extracting those that favor their position or cause and weeding-out those that oppose it. It may potentially give your client the edge he/she may need to succeed in their claim or defense. Why eliminate this process? Maybe what we need, as Batson tries to do, is to further safeguards. Possibly a solution could be multiple levels of juror questionnaires that eliminate face-to-face contact between lawyers and the venire. This will remove the elements of race, gender, and ethnicity from the section process and base each side’s peremptory challenges on responses on paper. If the lawyer’s strategy is aided by having a particular venireman on his jury, the selection will be based on written responses to more extensive questioning. The lawyers would meet the jury for the first time when being sworn in. Despite the potential hardships in a successful Batson challenge, I think the importance in trail strategy and advocacy warrants the use of peremptory challenges.

There is no doubt in my mind that race should not play any role in the selection of a jury. Case law, i.e. Batson supports this idea. Unfortunately real life tells us that more times than not, race is the most dominant factor in determining whether or not to strike a potential juror. As David Markus correctly suggested, eliminating peremptory challenges would be the first critical step in eliminating racial bias in the selection of a jury. A previous post suggested that if peremptory challenges were eliminated, "unconstitutional discrimination in jury selection would simply move to the challenge-for-cause process which inventive lawyers will create and find much cause as they circumvent Batson now." I would not be so quick to agree with this statement however. Peremptory challenges require no specific justification and are virtually impossible to overturn (Batson objections rarely succeed). On the other hand, challenges for cause must be grounded upon some legitimate reason as to why the potential juror cannot serve on the jury. The argument must be convincing enough for the judge who must determine whether the argument is legitimate or frivolous disguised in order to strike a juror on the basis of race. Reasons given by attorneys such as "I didn't like the fact that he didn't make eye contact" would not warrant striking a potential juror. Of course, that is not to say that if this system was implemented, a potential juror would never be stricken on the basis of race. But I firmly believe that eliminating peremptory challenges would at the very least place a more serious burden on the shoulders of attorneys who seek to strike potential jurors on the basis of race.

Although this may appear as hubris, I do not to agree with Justice Marshall and Justice Brennan’s idea that the elimination of preemptory challenges will eliminate race out of the jury selection process. Although it is an idealistic proposition, it is one that would become illusory through the manipulations of savvy attorneys.

Preemptory challenges are a “necessary evil.” It would be impossible to police the mind of every attorney in the hopes of eliminating any consideration of race, religion or gender in the jury selection process. Whether we like it or not, the human mind is capable of thoughts that lay outside the boundaries of constitutional and legal protections. In their own imperfect way, preemptory challenges strike a balance in a system that seems to benefit from the lesser of two evils. Allowing the occasional stricken juror for the “wrong” reason is a small price to pay for a system that will place the weight of judicial scrutiny on the strikes for cause. Without the “evil” of preemptory challenges, “cause” as the only relevant factor in an attorney’s strike would become diluted with the introduction of biases in creative new ways. Necessity is the mother of invention, and removing preemptory challenges from the system would only invite new ways to replace their “evil.”

Doing away with peremptory challenges may have the initial outcome of doing away with challenges based on race, religion, etc. However there will always exist those individuals in society that wish to be jurors for the wrong reasons. How will a trial lawyer that knows in his or her gut that a juror is falsifying responses in voir dire just in the hopes of making it on a jury in order to stick to race driven preconceived verdicts. Ask regular people in society about relations between minority groups and police and the perceived notion exists. And if the average person(a potential juror) is unable to overcome their perceived notion then it becomes their reality. Taking away peremptory challenges takes away a weapon from both sides’ arsenals. Although racism and prejudices exit in our society, the fate of the defendant is still in the hands of twelve of his so-called peers. Eliminating the peremptory challenges afforded to both sides will not turn these so-called peers into more similarly situated peers of the defendant. Juries will never be impartial that is the reality. Without peremptory challenges the litigator finds himself barehanded at a sword fight. The attorneys alone have the responsibility of selecting a jury that best favors their clients interests, doing away with peremptory challenges makes this a onerous task.Glenndefend

Preemptory challenges should not be eliminated just because they are used to promote racial discrimination in jury selection. Eliminating preemptory challenges do not solve the problem of removing jurors based on their race alone. This end can be done by striking a juror for cause. However, I do believe that the real issue in this case and in criminal procedure is racial discrimination from the pre-arrest investigation to sentencing. Maybe the first question is why this defendant and not a non-minority defendant is being tried. The answer could be as simple as there is “enough evidence” to link this defendant with the crime. This is definitely not always the case. Many minority defendants are arrested because they are minorities and there are statistics that show this. Many arrests are made in high crime areas aka minority communities. That does not mean that all minorities are criminals, but it does create and reinforce misconceptions that guide, consciously or subconsciously, the decisions of law enforcement officials and society as a whole. Racial discrimination is prevalent throughout the criminal process; eliminating preemptory challenges does not make the system fairer if the defendant should not have been arrested in the first place. I believe the court in Batson is struggling with this issue but the facts of the case focuses on jury selection. How about making the exclusionary rule a real remedy rather than illusory. How about consistently requiring probable cause or a warrant rather than creating absurd exceptions that defy common sense. Such changes will never eliminate racial discrimination in the criminal process but it makes the system “fairer”.

Preemptory challenges are unique in the criminal process because they involve people uninvolved in the case. An all black juror may still convict a black defendant and not a white defendant. Jurors, laypersons, are swayed by speech, style, personality, and their own bias and prejudice. Whether a juror is stricken for race may not matter because a white person may still find a black defendant not guilty. Focusing on preemptory challenges as a tool that promotes racial discrimination is not addressing the real problem in the criminal justice system.

J. Levins said...The court currently gives the defense attorney more peremptory challenges that the prosecution and to give up this advantage could potentially eliminate the opportunity to eliminate hostile witnesses that are favorably disposed to the prosecution, but not sufficiently biased to merit exclusion for cause.

I believe that judges, at both the trial and appellate levels, are partially to blame for Batson’s failure to control improper uses of peremptory challenges during the jury selection process. Miller-El provides a perfect example of judges that simply did not adhere to their duties set forth under Batson- which requires the judge to assess the plausibility of “race-neutral” reasons in light of all evidence with a bearing on it. As was the case in Miller-El, where the judge allowed the prosecutor to grossly mischaracterize a potential juror’s statement while giving his “race-neutral” reason for using a peremptory challenge- the judge was responsible for granting the impermissible use of a peremptory challenge. I don’t blame the lawyers, as advocates, for doing everything (legally) possible to ensure victory, but when the lawyers cross that line-entering into the realm of illegal tactics, it is the job of the judge- as the neutral, to call bullshit when necessary and put the advocate-lawyers back into line.I think that with a little more judicial scrutiny coming from the bench, Batson, while not perfect, can indeed work.M.M.

J. Levins said...A defendant does not want an impartial jury nor does the prosecutor. Each side wants a jury that favors their side regardless of the innocence or guilt of the defendant. As long as the defense is entitled to a larger number of challenges, the advantage goes to the defense. However, upon further review, having no peremptory challenges would probably result in more hung juries which would favor the defense. I would like to see a test jurisdiction try this approach for a year to see what impact this would have on the actual trial verdicts. For example would there be more or less guilty verdicts and would there be an increase in the number or hung juries? Would juries take longer to reach a decision? Would this approach result in more hung juries? Before making such a radical change in the court system, a test sample should be established with the appropriate statistical analysis to ascertain the impact of such a change.

It is interesting to read that a defense attorney would advocate giving up the pre-empt advantage. Are you so sure there IS a viable solution out there? Or would trashing the pre-empts simply provide another basis for an appeal on conviction (i.e., the defendant was denied his right to ...)?

Bias in general, and racial bias specifically, is a huge societal problem. So are disposable mores. If something doesn't work as you perceive it should, toss the whole thing and get something else. Are the solutions offered really going to solve the problem, or evolve the problem to a higher, more complex level. If you get rid of pre-empts, the attorneys tempted to use stereotypes and/or racial profiling when selecting a jury will simply get more creative. Why not focus on weeding these attorneys out of the system, and thereby solve the problem, instead of simply putting a band aid over the sore and hoping like hell it goes away? And what about the attorneys who use the challenges as intended? Punishing them for the tendencies of a few seems discriminatory in and of itself. K Houston

First of all, despite the flaws embodied in the policy allowing peremptory strikes, I enjoy the extra layer of color and complexity it brings to trials. Secondly, allowing the defense a voice in jury selection probably provides a greater opportunity for the defendant to win an acquittal.

However, I must agree with Professor Marcus, that peremptory strikes reinforce racial bias and racial politics within a jury and within society at large. Furthermore, as most of the other commentators have indicated, elimination of peremptory strikes alone would not eliminate the racial bias motivating jury selection, because strikes for cause are used in the same manner. For this reason, I would advocate the elimination of jury selection altogether, if the policy goal is elimination of racial bias in juries.

If the policy objective is a non-racially biased jury of one’s peers, the best jury would be randomly selected from the population according to scientific principles. Ideally, in a state case, juries would be randomly selected from the entire state and brought to the jurisdiction implicated the case. A federal case would involve a random selection of jurors from the entire country. In one blow, this would solve the problems of racially biased juries and the question of whether a particular jurisdiction is able to provide a fair trial, either due to the prejudicial effects of local media coverage or local demographics. Of course, this solution would cost more, but balanced against the decrease in appeals based on improper jury selection and venue, perhaps it would average out. Overall there would be a greater perception of justice and fairness that might make any additional cost worthwhile.

A complete ban on jury selection would result in more hung juries and more instances of jury nullification, because occasionally close minded people that would have been stricken under the current system would be selected. For example, the vigilante that supports the death penalty in every case, or the liberal that believes possession of cannabis is not a crime would remain on the panel. Hung juries would be a boon to the defense, and fewer defendants would be prosecuted or convicted of such crimes. The prosecution would seek the death penalty less. Greater frequency of jury nullification would create additional opportunities for appeal by both sides.

Finally, a jury of one’s peers is not necessarily a jury of people that are open minded or who are willing to abide by the law. Law in the United States is the product of democracy, but also the product of special interests and the rich and powerful. A real jury of one’s peers is not the jury selected by calculating adversaries. Instead it is the bounded rationality of one’s actual peers. At least no one would be able to argue that the prosecution is racist if juries were selected at random.

Rather than depending on jurors pre-selected for their likely views, attorneys would have to argue to people that may have already formed opinion regarding a particular topic. In Rhetoric, Aristotle pointed out that that since the defining quality of humanity is the ability to think, good people must learn to be persuasive, so that the good will prevail. Abandoning jury selection is an interesting idea. Perhaps California should try it.

At the threshold of trial, lawyers are faced with a venire that is a jumble of uncertainty through which they have a very limited opportunity to decipher. Both sides are zealous in their desire to prevail but will be unable to truly get into the minds of the potential jury. The best they have is a hunch as to who will be most favorable to their side. The peremtory challenge allows them to act on that hunch, for better or for worse.Though there is sterotyping and categorizing involved in the process, I choose to believe that the majority of attorneys are acting in mind with the best interests of their client (be it the government or the defendant.) Wasn't that what you had in mind when you objected to all those G-names, Prof. Markus? Batson and Miller-El are out there for the extreme situation where a purely racist agenda has been set forth. Yes, it takes an extreme showing of blatant racism to overturn a case for this reason. I think this is proper and the system should remain as is - giving lawyers freedom to do their jobs best.

The Southern District of Florida blog was started in 2005 by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.